Pickering v. Commissioner of Social Security

Filing 17

ORDER signed by Magistrate Judge Kendall J. Newman on 2/23/18, ORDERING that Plaintiff's 14 motion for summary judgment is DENIED. The Commissioner's 15 cross-motion for summary judgment is GRANTED. The final decision of the Commissioner is AFFIRMED, and judgment is entered for the Commissioner. CASE CLOSED (Kastilahn, A)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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PATRICIA VON PICKERING

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Plaintiff,

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No. 2:16-cv-2856-KJN

v.

ORDER

COMMISSIONER OF SOCIAL
SECURITY,
Defendant.

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Plaintiff Patricia Von Pickering seeks judicial review of a final decision by the

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Commissioner of Social Security (“Commissioner”) denying plaintiff’s application for Disability

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Insurance Benefits (“DIB”) and Supplemental Security Income (“SSI”) under Titles II and XVI,

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respectively, of the Social Security Act (“Act”).1 In her motion for summary judgment, plaintiff

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principally contends that the Commissioner erred by finding that plaintiff was not disabled from

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December 31, 2007, through July 27, 2015. (ECF No. 14.) The Commissioner opposed

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plaintiff’s motion and filed a cross-motion for summary judgment. (ECF No. 15.) No optional

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reply brief was filed.

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This action was referred to the undersigned pursuant to Local Rule 302(c)(15), and both parties
voluntarily consented to proceed before a United States Magistrate Judge for all purposes. (ECF
Nos. 3, 8, 9.)
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After carefully considering the record and the parties’ briefing, the court DENIES

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plaintiff’s motion for summary judgment, GRANTS the Commissioner’s cross-motion for

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summary judgment, and AFFIRMS the Commissioner’s final decision.

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I.

BACKGROUND

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Plaintiff was born on September 7, 1956; has a high school education and training as a

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medical assistant; can communicate in English; and previously worked as a medical assistant.

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(Administrative Transcript (“AT”) 43-44, 70-71.)2 On June 5, 2012, plaintiff applied for DIB and

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SSI, alleging that she became disabled on December 31, 2007, due to a seizure disorder, vision

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loss, memory loss, and general confusion. (AT 23, 70-71, 166, 171, 194.) After plaintiff’s

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application was denied initially and on reconsideration, an administrative law judge (“ALJ”)

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conducted a hearing on April 30, 2015, at which plaintiff, represented by counsel, and a

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vocational expert (“VE”) testified. (AT 23, 39-55.) On July 27, 2015, the ALJ issued a decision

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finding that plaintiff had not been under a disability, as defined in the Act, from December 31,

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2007, plaintiff’s alleged disability onset date, through the date of the ALJ’s decision. (AT 23-32.)

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That decision became the final decision of the Commissioner when the Appeals Council denied

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plaintiff’s request for review on October 12, 2016. (AT 1-3.) Plaintiff subsequently filed this

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action on December 3, 2016, to obtain judicial review of the Commissioner’s final decision.

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(ECF No. 1.)

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II.

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ISSUES PRESENTED
On appeal, plaintiff raises the sole issue of whether the case should be remanded for

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consideration of new evidence presented to the Appeals Council.

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III.

The court reviews the Commissioner’s decision to determine whether (1) it is based on

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LEGAL STANDARD

proper legal standards pursuant to 42 U.S.C. § 405(g), and (2) substantial evidence in the record

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Because the parties are familiar with the factual background of this case, including plaintiff’s
medical and mental health history, the court does not exhaustively relate those facts in this order.
The facts related to plaintiff’s impairments and treatment will be addressed insofar as they are
relevant to the issues presented by the parties’ respective motions.

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as a whole supports it. Tackett v. Apfel, 180 F.3d 1094, 1097 (9th Cir. 1999). Substantial

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evidence is more than a mere scintilla, but less than a preponderance. Connett v. Barnhart, 340

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F.3d 871, 873 (9th Cir. 2003) (citation omitted). It means “such relevant evidence as a reasonable

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mind might accept as adequate to support a conclusion.” Orn v. Astrue, 495 F.3d 625, 630 (9th

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Cir. 2007), quoting Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005). “The ALJ is

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responsible for determining credibility, resolving conflicts in medical testimony, and resolving

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ambiguities.” Edlund v. Massanari, 253 F.3d 1152, 1156 (9th Cir. 2001) (citation omitted). “The

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court will uphold the ALJ’s conclusion when the evidence is susceptible to more than one rational

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interpretation.” Tommasetti v. Astrue, 533 F.3d 1035, 1038 (9th Cir. 2008).

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IV.

DISCUSSION
Summary of the ALJ’s Findings

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The ALJ evaluated plaintiff’s entitlement to DIB and SSI pursuant to the Commissioner’s

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standard five-step analytical framework.3 As an initial matter, the ALJ found that plaintiff met

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Disability Insurance Benefits are paid to disabled persons who have contributed to the Social
Security program. 42 U.S.C. §§ 401 et seq. Supplemental Security Income is paid to disabled
persons with low income. 42 U.S.C. §§ 1382 et seq. Both provisions define disability, in part, as
an “inability to engage in any substantial gainful activity” due to “a medically determinable
physical or mental impairment. . . .” 42 U.S.C. §§ 423(d)(1)(a) & 1382c(a)(3)(A). A parallel
five-step sequential evaluation governs eligibility for benefits under both programs. See 20
C.F.R. §§ 404.1520, 404.1571-76, 416.920 & 416.971-76; Bowen v. Yuckert, 482 U.S. 137, 14042 (1987). The following summarizes the sequential evaluation:
Step one: Is the claimant engaging in substantial gainful activity? If so, the
claimant is found not disabled. If not, proceed to step two.
Step two: Does the claimant have a “severe” impairment? If so, proceed to step
three. If not, then a finding of not disabled is appropriate.
Step three: Does the claimant’s impairment or combination of impairments meet or
equal an impairment listed in 20 C.F.R., Pt. 404, Subpt. P, App. 1? If so, the
claimant is automatically determined disabled. If not, proceed to step four.
Step four: Is the claimant capable of performing her past relevant work? If so, the
claimant is not disabled. If not, proceed to step five.
Step five: Does the claimant have the residual functional capacity to perform any
other work? If so, the claimant is not disabled. If not, the claimant is disabled.

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the insured status requirements of the Act for purposes of DIB through December 31, 2012. (AT

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25.) At the first step, the ALJ concluded that plaintiff had not engaged in substantial gainful

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activity since December 31, 2007, plaintiff’s alleged disability onset date. (Id.) At step two, the

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ALJ found that plaintiff had the following severe impairments: seizure disorder, degenerative disc

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disease of the lumbar spine, and cataracts. (Id.) However, at step three, the ALJ determined that

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plaintiff did not have an impairment or combination of impairments that met or medically equaled

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the severity of an impairment listed in 20 C.F.R. Part 404, Subpart P, Appendix 1. (AT 26.)

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Before proceeding to step four, the ALJ assessed plaintiff’s residual functional capacity
(“RFC”) as follows:
After careful consideration of the entire record, the undersigned
finds that the claimant has the residual functional capacity to
perform light work as defined in 20 CFR 404.1567(b) and
416.967(b), except she is able to lift/carry up to 20 pounds
occasionally and 10 pounds frequently and is restricted from
climbing ladders, ropes and scaffolds and working at heights or
around heavy machinery or driving a car as part of her job duties.

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(AT 27.) At step four, the ALJ determined, based on the VE’s testimony, that plaintiff was

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capable of performing her past relevant work as a medical assistant as that work is generally

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performed in the national economy. (AT 31.) Consequently, the ALJ concluded that plaintiff had

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not been under a disability, as defined in the Act, from December 31, 2007, plaintiff’s alleged

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disability onset date, through July 27, 2015, the date of the ALJ’s decision. (Id.)

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Plaintiff’s Substantive Challenges to the Commissioner’s Determinations

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As noted above, for purposes of this appeal, plaintiff does not challenge the ALJ’s RFC

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assessment based on the record evidence that was before the ALJ. Instead, plaintiff raises the

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sole issue of whether the case should be remanded for consideration of new evidence presented

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for the first time to the Appeals Council. “[W]hen the Appeals Council considers new evidence

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in deciding whether to review a decision of the ALJ, that evidence becomes part of the

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Lester v. Chater, 81 F.3d 821, 828 n.5 (9th Cir. 1995).

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The claimant bears the burden of proof in the first four steps of the sequential evaluation
process. Bowen, 482 U.S. at 146 n.5. The Commissioner bears the burden if the sequential
evaluation process proceeds to step five. Id.

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administrative record, which the district court must consider when reviewing the Commissioner’s

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final decision for substantial evidence.” Brewes v. Comm’r of Soc. Sec., 682 F.3d 1157, 1163

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(9th Cir. 2012).

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In this case, plaintiff submitted to the Appeals Council a September 1, 2015 letter by
opthalmologist Dr. Brian Rothlisberger, which stated as follows:

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Patricia Pickering was seen at my office for a complete eye exam
on August 4, 2015. She complains of blurred vision, double vision,
difficulty with depth perception and she has had trouble with falls.
She has a history of seizures and is currently taking Keppra. She
comes in to check on cataracts.

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On exam, she has very severe myopia and astigmatism in both
eyes…Her vision only corrects to 20/80 in the right eye and 20/60
in the left eye. Her eyes have a tendency to cross. She has jerky
movements of the eyes with tracking objects. She has relatively
mild cataracts with trace posterior subcapsular cataracts in both
eyes.

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My assessment is that she has visual disability that would not be
corrected with cataract surgery. 1. Her cataracts are fairly mild at
this time and are not causing significant blurring of her vision. I
will reevaluate in 6 months. 2. She has very severe refractive error
in both eyes. She may have underlying refractive amblyopia from
her astigmatism. She may also have decreased functioning of her
macula due to her high myopia. These two things are probably
what limits her best corrected acuity to 20/60. 3. She has an
esophoria which is a tendency for the eyes to cross which can affect
her depth perception. 4. Her anti-seizure medication may be
causing a worsening of her esophoria and may also be affecting her
balance and coordination which puts her at more risk for falls.

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(AT 535.)
Even if Dr. Rothlisberger’s opinion is fully credited, substantial evidence continues to

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support the ALJ’s decision. As the Commissioner notes, the occupation of medical assistant

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involves:

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Near Acuity: Frequently – Exists from 1/3 to 2/3 of the time

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Far Acuity: Not Present – Activity or condition does not exist

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Depth Perception: Occasionally – Exists up to 1/3 of the time

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Field of Vision: Not Present – Activity or condition does not exist

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See Dictionary of Occupational Titles 079.362-010 (Medical Assistant), available at 1991 WL

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646852. Dr. Rothlisberger suggested that plaintiff’s best corrected acuity was 20/60, and the
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American Optometric Association notes that when “the vision in the better eye with best possible

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glasses correction is…20/30 to 20/60, this is considered mild vision loss, or near-normal vision.”

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See https://www.aoa.org/patients-and-public/caring-for-your-vision/low-vision (last visited Feb.

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14, 2018). Furthermore, although Dr. Rothlisberger observed that plaintiff’s depth perception

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was affected, he does not quantify any associated limitation. Notably, the medical assistant job

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only requires occasional (up to 1/3 of the time) need for depth perception.

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Rothlisberger’s vague assertion regarding depth perception does not compel remand.

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Additionally, to the extent that plaintiff’s balance and coordination are affected, and place her at a

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greater risk for falls, the ALJ’s RFC already includes appropriate restrictions with respect to

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climbing, working at heights, or working around heavy machinery. Finally, even though Dr.

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Rothlisberger mentions plaintiff’s “visual disability,” it is far from clear that Dr. Rothlisberger

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refers to disability for purposes of the Act, and even if that were the intended reference, it is

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entirely conclusory and unsupported by actual clinical findings.

Thus, Dr.

Therefore, the court concludes that Dr. Rothlisberger’s September 1, 2015 letter does not

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compel remand.

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V.

CONCLUSION

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Accordingly, IT IS HEREBY ORDERED that:

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1.

Plaintiff’s motion for summary judgment (ECF No. 14) is DENIED.

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2.

The Commissioner’s cross-motion for summary judgment (ECF No. 15) is

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GRANTED.
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The final decision of the Commissioner is AFFIRMED, and judgment is entered

for the Commissioner.

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4.

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IT IS SO ORDERED.

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The Clerk of Court shall close this case.

Dated: February 23, 2018

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